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March 4, 2010

House Subcommittee Holds Hearing on TSCA and PBTs

Bergeson & Campbell, P.C.

On March 4, 2010, the House Committee on Energy and Commerce Subcommittee on Commerce, Trade, and Consumer Protection held a hearing entitled “TSCA and Persistent, Bioaccumulative, and Toxic Chemicals: Examining Domestic and International Actions.” The Subcommittee held the hearing to examine U.S. and international efforts to protect public health and the environment from persistent, bioaccumulative, and toxic (PBT) chemicals, how the Toxic Substances Control Act (TSCA) is currently being used to manage these chemicals, and how the TSCA process might be improved.

Witnesses included:

  • James Jones, Deputy Assistant Administrator, Office of Prevention, Pesticides, and Toxic Substances, U.S. Environmental Protection Agency (EPA);
  • John Thompson, Division Director, Office of Environmental Policy, Bureau of Oceans, Environment, and Science, Department of State;
  • Ted Sturdevant, Director, Department of Ecology, State of Washington;
  • Linda Greer, Director, Health and Environment Program, Natural Resources Defense Council;
  • Christina Cowan-Ellsberry, CE2 Consulting, Former Principal Scientist, Environmental Sciences Department, Procter & Gamble; and

Witness statements and the Subcommittee’s briefing memorandum are available online.

Jones described EPA’s past and present efforts on PBT chemicals and pesticides. He noted that EPA chose the chemicals in its initial set of chemical action plans on the basis of multiple factors, including PBT characteristics and that three of the cases involved PBTs: polybrominated diphynyl ethers (PBDE), short chain chlorinated paraffins, and perfluorinated chemicals. EPA’s concerns about PBTs were described as well as the steps that it has taken with pesticides and chemicals, including the new chemicals policy statement that provides guidance criteria for determining PBTs and informing the industry about its regulatory approach, including the evaluation criteria, review process, exposure/release controls, and testing strategy for potential new PBT chemicals.

Jones noted that the U.S. helped negotiate the Stockholm Convention on Persistent Organic Pollutants (Stockholm or POPs Convention) and the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (Rotterdam or PIC Convention). The Stockholm Convention prohibits or restricts the production, use, and release of chemicals that are toxic, persist in the environment for long periods of time, bioaccumulate as they move up through the food chain, and are transported long distances in the environment. The Rotterdam Convention is intended to promote information exchange and informed risk-based decision-making in the global movement of hazardous chemicals and pesticides. The U.S. also participates in the Persistent Organic Pollutants Protocol to the Convention on Long Range Transboundary Air Pollution (LRTAP POPs Protocol), which addresses PBT substances that are susceptible to long range transport. The LRTAP POPs Protocol is regional in nature, covering member states of the United Nations Economic Commission for Europe, which includes, among others, the U.S., Canada, the European Union (EU), Russia, parts of the former Soviet Union, and Eastern Europe. Jones urged Congress to pass the implementing legislation that would allow the U.S. to join the Stockholm Convention, the Rotterdam Convention, and the LRTAP POPs Protocol.

According to Thompson, the issues involved in TSCA reform are outside the Department of State’s responsibilities and so he did not express views on these matters. He emphasized the importance of enabling the full participation of the U.S. in the deliberations taking place under the Stockholm Convention, the Rotterdam Convention, and the LRTAP POPs Protocol. Thompson stated that, although the treaties have been supported through multiple Administrations, and are supported by the Obama Administration, the U.S. is unable to participate fully in their proceedings and contribute to the process as the interpretations and applications of the agreements evolve over time and add additional chemicals to their scope. By joining these agreements, the U.S. would be able to use them effectively to pursue public health protection in the U.S.

Sturdevant described efforts by the State of Washington to assess and manage toxic chemicals and based on that experience outlined a series of “basic principles for a rational chemicals management policy,” which he summarized as “precaution, targeted bans when needed, or encouraging the use of safer alternatives.” He stated that current federal policy cannot be described as including any of these principles. He made a strong pitch for the importance of state efforts in addressing chemicals, and asked that this role be preserved in any revision to TSCA. Sturdevant also mentioned the “Principles for Reform of TSCA” that were released by 13 states in December. He closed with a discussion of the “politics of chemical policy,” which he described as having changed significantly over the past few years to a more widespread recognition by the public that more needs to be done, that both jobs and the environment can be protected, and that in Washington State the recognition of the need for action is bipartisan. Sturdevant asked that TSCA reform include “a preventive framework that requires reasonable measures to show that chemicals are safe before they are allowed into widespread commerce,” and, for those chemicals that are already in commerce, “a system that prioritizes chemicals of concern, and provides effective tools to address them.”

Greer urged Congress to take “immediate action” on persistent chemicals such as PBDEs. According to Greer, many other chemicals are also turning out to be PBTs, and require “decisive action, not years of additional study while the levels in the food supply creep upward.” Greer testified that Congress and the Obama Administration should be working to address chemicals used in commerce that are known to be PBTs. Greer stated her belief that risk assessment is “inadequate” to assess PBTs because it fails to take account of the future exposures that will result from chemicals that persist in the environment and bioaccumulate. She stated that PBTs currently in commerce should be “phased out, allowing, of course, for exemptions for essential uses for which no alternatives yet exist.”

Cowan-Ellsberry emphasized several issues:

  • International programs have been addressing PBTs for several decades;
  • TSCA must be flexible to incorporate state of the science;
  • PBTs must be prioritized, assessed for risk, and, where appropriate, managed;
  • International conventions must be ratified so that EPA can bring scientific leadership to international fora; and
  • Strong national PBT program.

According to Cowan-Ellsberry, by EPA developing a stronger federal PBT program, states would not have to take separate and potentially conflicting actions to identify and manage PBTs. To ensure acceptance and a technically strong, comprehensive process for identification and assessment of PBTs, EPA should develop methods for identification and assessment within a scientific multi-stakeholder process or through the use of a Scientific Advisory Panel. Cowan-Ellsberry noted that this would require a commitment from Congress for full funding, staffing, and support of such a strong federal PBT program.

Adams testified concerning the differences between inorganic metals and metal compounds, and organic substances, and the need for risk assessors to use the appropriate models in health and ecological risk assessments. EPA’s 2007 Framework for Metals Risk Assessment recognized that inorganic metals and metal compounds generally should not be assessed using models developed for organic substances. The EU’s Registration, Evaluation, Authorization and Restriction of Chemicals legislation acknowledges that PBT criteria do not apply to inorganic substances, which includes metals, although it does apply to organo-metals. Adams urged against the universal and uncritical application of PBT criteria to all chemical substances — for example, to create lists of chemicals of concern. Since PBT information, by itself, cannot determine risk, such criteria should not be used in isolation as a basis for requiring regulatory action. Instead, consideration must be given to an exposure concept of transformation relative to the potential release of forms of metals that are bioavailable.


This hearing, billed as another in the TSCA series for the 111th Congress, was the first to mention extensively the need for the United States to enact the implementing legislation for the POPs and LRTAP agreements. This is important as previous Administrations have supported such legislation, and now the Obama Administration is on record as also supporting such legislation.

No particular legislative text was offered today by any witness, so it is currently presumed that any treaty-related provisions will be part of a larger TSCA reform. At the same time, it might indicate that if any TSCA reform package is not forthcoming, then separate efforts to implement POPs/LRTAP might be contemplated.

Lastly, much of the discussion during questions for the panel centered on which specific chemicals should be regulated (including possibly listing chemicals in the legislation), or what criteria would be best to use for identifying candidate chemicals (and pesticides would also be subject to the conventions, e.g., DDT). Regarding PBTs, if the treaty legislation is enacted, most of those “details” are encompassed by the treaty provisions.